Opinion by
On November 13, 1965, between 8:00 and 9:00 p.m., the deceased, Raymond Germek, was operating a taxicab in the City of Duqnesne. While there was a fare in the front seat of the cab, two men opened the back doors and requested the driver to take them to Mc-Keesport. The driver replied he could not take them because he had another fare elsewhere. The fare exited from the cab a block after the two men entered. Within the next few moments, the driver was stabbed twice about the head, and the two men were seen running away. The cab driver stated to various people that two Negroes had tried to rob him. Although he managed to drive his cab to McKeesport Hospital, Germek died five days later from complications from the stab wounds.
Appellant, along with one Fred Tedders, was indicted for murder. A severance was requested and granted. Tedders was tried first and convicted of first degree murder. Crews was then tried beginning November 28, 1966, and was convicted by a jury of first degree murder, with penalty set at life imprisonment. Appellant’s motions for new trial and arrest of judgment were denied by a court en banc. This appeal, followed the judgment.
Appellant argues that the court below erred in denying these motions. We hold that the denial of the motion for arrest of judgment was proper, but that it was error to deny the motion for new trial.
On motion for arrest of judgment the test is “whether accepting as true all the evidence upon which, if believed, the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable
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do.nbt that the defendant is guilty of the crime charged.”
Commonwealth v. Kravitz,
The evidence here was ample to support the verdict. Two men were observed in the taxicab of the deceased. They were seen to struggle with the driver and flee from the cab. Appellant fit the general description of one of the criminals as to height, coloration, and clothing. Appellant was in the company of his alleged accomplice before and after the crime, and was wearing the clothes described by the eyewitness. A- fellow prisoner in the Allegheny County Jail testified to Crews’ admission that he was in the cab on the night of November 13, 1965. Surely, this evidence is sufficient to support a finding that appellant participated in an attack upon the driver. Appellant contends further, however, that there is no proof of the malice necessary to support a murder verdict. Yet it has long been the rule at common law and in Pennsylvania that a killing committed in the perpetration of a felony is murder.
Commonwealth v. Melton,
Barbara Smith was the girl friend of appellant, and apparently lived with him in a meretricious relationship. She at one time made a statement to the police, consisting of six typewritten pages, in question and answer form, and sworn to by her. In this statement she revealed that appellant had told her that he and Tedders were in the cab, that Tedders had drawn a knife, that he (Crews) had run, and that he believed Tedders had cut the driver’s throat. Later, Mrs. Smith asserted that the statement had been coerced, and informed the District Attorney that she would not testify in accordance with it. At trial, the prosecutor notified the judge that he had a hostile witness but could not plead surprise, and requested the judge to call Mrs. Smith as the court’s witness. The court called Mrs. Smith, and after asking if the signature under oath was hers, read her statement into the record, asking at the end of each answer whether the witness had so answered. Both the defense counsel and the district attorney were then permitted to cross-examine. The defense brought forth Mrs. Smith’s allegation that the statement had been coerced, while the district attorney called one Esther Delts, who was permitted to testify that Barbara Smith had told her that defendant Crews had told Barbara Smith that Fred Tedders had cut the cab driver’s throat.
We have no doubt that the above procedure was error necessitating a new trial. This case presents at least as strong a case for reversal as did the recent
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ease of
Commonwealth v. DiPasquale,
“After the evidence was closed at trial and both sides had rested, the district attorney then requested that Miss Pierce be called as the court’s own witness. The court complied with this request. She was examined about her association with DiPasquale, and in particular about anything she heard him say concerning the crime involved. When she failed to disclose and denied that DiPasquale had ever made any incriminating admissions as to the crime in her presence, she was strenuously cross-examined by the Commonwealth as to the contents of her statement to the police, her testimony before the magistrate and her interview with Mr. Sklar. What she said on these oc *22 casions was disclosed to the jury and the patent inconsistencies thereof with her trial testimony was forcefully brought out. While she freely admitted telling the police, the magistrate and Mr. Sklar that she had heard DiPasquale make the incriminating statements involved, she steadfastly denied at trial she had ever heard DiPasquale make such statements, and stated her previous statements and testimony before the magistrate to the contrary were false.”
The conviction in DiPasquale was reversed, for two reasons. The first was that the failure of the trial court properly to instruct the jury that the recanted statements could not be used as substantive evidence of guilt was prejudicial error. That ground is not available to appellant here, despite his protestations to the contrary. Appellant claims that the charge was inadequate in merely stating that “It would be correct that to the degree that she repudiated the statement that portion would cease to be what is termed substantive evidence.” The objection is that substantive evidence is not defined. Read in context with the previous sentence of the charge—“ ‘Whatever she denied as being true or contradicted while she testified is not substantive evidence against the defendant nor can it be used to prove the charge against him.’ ”—the court’s charge on this point was not erroneous.
The second basis for the holding in
DiPasquale
was that the court had abused its discretion in permitting the type of cross-examination of its witness, Miss Pierce, that took place. This court there said,
“However, in exercising this power, a wise discretion should be utilized, not only as to whether witnesses should be called by the court itself, but also as to the extent and manner of the examination permitted. While the trial court here'may have been fully justified in calling Miss Pierce as its own witness, we believe that it failed to exercise • a sound discretion in the extent and nature of the examination- permitted.
“Evidence of Miss Pierce’s prior inconsistent statements was pure hearsay. If she had been called as a Commonwealth’s witness, evidence thereof could not properly have been introduced under the circumstances presented. However, since she was not such a witness, the Commonwealth, under the guise of impeaching her credibility, was permitted to ■ bring to' the knowledge of the jury through the back doof that which it was precluded from bringing in through the front door; namely, the damaging contents , of her'prior inconsistent statements. * The rule permitting trial courts to summon and examine witnesses on its own accord does not envision that the power shall be exercised to accomplish such a result.”
The prior inconsistent.statements of Barbara Smith in the instant case made a similar back door entry. In fact, the situation here was considerably more prejudicial to the defendant than that in DiPasquale. For in DiPasquale, the judge merely questioned the witness, and the prior inconsistent statements were introduced by the Commonwealth on cross-examination. Here, the Commonwealth was improperly allowed to use the prior inconsistent statements to impeach through *24 the witness Esther Delts. But what was much worse was that the judge himself read the prior inconsistent statements to the jury, and the jury could not have helped but view this as the statements receiving the judge’s imprimatur. If cross-examination as to the statements is bad in DiPasquale, a fortiori, the judge’s reading the statements to the jury is error.
Judgment reversed, and new trial ordered.
Notes
“Such procedure was severely condemned by tbis Court, speaking by Chief Justice Jones, in Commonwealth v. Turner,